Decision Date: 07/11/95 Archive Date: 01/19/96
DOCKET NO. 93-14 524 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for bilateral defective
hearing.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Richard T. Foss, Associate Counsel
INTRODUCTION
The appellant is a veteran of active military service from
December 1979 to December 1983.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1992 adverse rating
determination by the Boston, Massachusetts, Regional Office
(RO) of the Department of Veterans' Affairs (VA). A RO
hearing was held in April 1993, a transcript of which is of
record.
In July 1992 the RO denied service connection for a
psychiatric disorder, and the veteran was notified that
determination in August 1992. There is no notice of
disagreement with the July 1992 rating action of record at
this time. However, in February 1995, the veteran submitted
clinical records of treatment for a psychiatric disorder to
the RO. The RO forwarded the records to the Board. The
possible issue of whether new and material evidence has been
submitted to reopen a claim for service connection for a
psychiatric disorder is referred to the RO for clarification
and any action deemed appropriate.
REMAND
A series of procedural considerations has precluded the Board
from addressing the issue noted on the title page on the
merits and necessitates a Remand. The appeal has been
certified on the basis of whether new and material evidence
has been submitted to reopen a claim for service connection
for bilateral defective hearing. For background purposes,
the first claim for service connection for bilateral
defective hearing was filed by the veteran in January 1984.
In March 1984, the veteran failed to report for various VA
examinations ordered by the RO, including an audiometric
examination. In that same month, the RO advised him that no
further action would be taken on his claim until he advised
of his willingness to report for examination.
In March 1987, the veteran advised the RO of his willingness
to report for examination, but the RO (in Hartford,
Connecticut) refused to take further action until the veteran
submitted additional evidence in support of his claim. In
April 1987, the veteran was seen at a VA outpatient treatment
clinic complaining of decreased hearing in his left ear. It
is indicated that an examination was scheduled by the
outpatient treatment clinic on May 4, 1987, strictly for
treatment purposes, and that the veteran did not report for
that examination.
In January 1988 the veteran again advised the RO of his wish
for a VA examination to assess the status of his hearing. At
this time the RO (in Hartford, Connecticut) denied the claim
for service connection for bilateral defective hearing on the
merits, without according the veteran an audiometric
examination.
The Board cannot reconcile the RO decision in 1984 with
regard to a VA examination, with the later decisions in 1987
and 1988. In any event, the veteran did not file a timely
notice of disagreement with the January 1988 rating action,
and, as such, that rating action became final.
In August 1990, the veteran attempted to reopen his claim,
and said he would be willing to report for examination. The
RO advised him of the need to submit new and material
evidence in support of reopening the claim. There was no
response from the veteran. The current attempted reopening
of the claim was undertaken by the veteran in 1991.
In September 1991, the appellant indicated that he had
received treatment at St. Mary’s Hospital in Waterbury,
Connecticut, relevant to his pending claim. The RO secured
the appellant’s authorization in order to seek treatment
records from St. Mary’s and, thereafter, wrote the hospital
for such treatment records. The dates of treatment were said
to be from September 1984 to November 1989.
St. Mary’s Hospital responded to the RO’s request with a
standardized form indicating only that the appellant had been
seen in their emergency room. The hospital also asked on
this form that the RO specify treatment dates so as to
facilitate a search for medical records.
The record does not demonstrate that the RO took any further
action at that point. The RO did not inquire further of the
appellant as to the nature of his emergency room treatment -
for what condition(s) he was being treated there. Instead,
the RO treated the hospital’s statement as a negative
response, which it was not. There are numerous decisions of
the United States Court of Veterans Appeals that would
classify this RO action as a failure of the duty of the VA to
assist the veteran in the development of his claim.
38 U.S.C.A. § 5107(a) (West 1991). In this regard, reference
is made to a report of contact from the Board to the hospital
in June 1995, as to what additional action is necessary in an
attempt to retrieve any emergency room records.
In April 1993, the veteran testified at an RO hearing, among
other things, that he was not aware of any problem with his
hearing when he entered service. However, when he was
separated from service he was told he had a left ear hearing
loss. This testimony must be presumed to be credible for the
purpose of reopening of the claim. Once the claim is
reopened, the credibility and probative value of the evidence
can be reassessed in conjunction with all other pertinent
evidence of record. Justus v. Principi, 3 Vet. App. 510
(1992). The Board has determined that the claim has been
reopened by new and material evidence. When the remand
development called for below has been completed, the RO will
need to decide the issue on the basis of all evidence of
record, (a de novo review).
Accordingly, this appeal is remanded to the RO for the
following further actions:
1. The appellant should be requested to
provide the specific dates, as best he
can, of his treatment, for defective
hearing at St. Mary’s Hospital in
Waterbury, Connecticut. When such
information and the necessary
authorization have been obtained, the RO
should attempt to secure copies of all
relevant medical records from St. Mary’s
Hospital. This would, of course, include
any and all treatment records pertaining
to the emergency room treatment that the
appellant received at St. Mary’s - that
treatment which the hospital indicated in
its past correspondence with the RO.
2. The RO should accord the veteran a VA
audiometric examination to ascertain the
presence or absence of recognizable
defective hearing at the current time
pursuant to 38 C.F.R. § 3.385 (1994).
3. The RO should adjudicate the
appellant’s claim for service connection
for defective hearing on a de novo basis
in light of 38 C.F.R. § 3.385 (1994) and
Hensley v. Brown, 5 Vet.App. 155 (1993);
If the benefit sought on appeal is not granted to the
appellant's satisfaction, a Supplemental Statement of the
Case addressing the issue on appeal should be prepared and
furnished to the appellant and his representative. They
should be provided an opportunity in which to respond.
Thereafter, in accordance with proper appellate procedures,
the case should be returned to the Board for further
appellate review, if otherwise in order.
In taking this action, the Board implies no conclusion,
either legal or factual, as to any final outcome warranted.
No action is required of the appellant until he is otherwise
notified by the RO.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1994).
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